Video | Agriculture | Confidence | Economy | Energy | Employment | Finance | Media | Property | RBNZ | Science | SOEs | Tax | Technology | Telecoms | Tourism | Transport | Search


Judgment: Sandman v McKay, Cann, Clark

16 APRIL 2019



(SC 35/2018) [2019] NZSC 41


This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at Judicial Decisions of Public Interest

On 2 December 2010Mark Sandman’s mother, Mrs Elizabeth Sandman, executed a will. She died on 30 October 2013 and her estate was distributed in 2014 in accordance with that will.

Under the 2010 will Mark Sandman was left the apartment that he occupied. There were a number of other minor bequests. The residual estate was divided equally between Mrs Sandman’s two children: Mark Sandman and his sister, Victoria Sandman. Should either of the residuary beneficiaries predecease Mrs Sandman, the share that child would have taken was, absent issue (children), to be divided among certain relatives and friends of Mrs Sandman.

Victoria Sandman predeceased Mrs Sandman. She had no issue. Under an earlier will executed in 2005, Victoria’s share of the residuary estate would have gone to Mark Sandman rather than to Mrs Sandman’s relatives and friends in accordance with the 2010 will.

Before Mrs Sandman executed the 2010 will on 28 October 2010, her doctor certified that Mrs Sandman had the mental capacity to understand she was making a will and disposing of her assets. The doctor last saw Mrs Sandman on 30 September 2010. At the same time Mrs Sandman executed the 2010 will, she executed two enduring powers of attorney in favour of Victoria (in relation to property and welfare). Before she executed these, as required by statute, an independent solicitor certified that he had “no reason to suspect that [Mrs Sandman] was or may have been mentally incapable at the time she signed the enduring power of attorney” forms.

In November 2016 Mark Sandman filed a claim in the High Court alleging that Mrs Sandman lacked testamentary capacity when she executed the 2010 will. It was further alleged that, because Mrs Sandman lacked capacity, the 2010 will reflected the wishes of her daughter, Victoria, and of Mr Giboney, one of the executors, rather than Mrs Sandman’s wishes.

It was also alleged that Wilson McKay, Mrs Sandman’s solicitors and the Respondents, had dishonestly assisted Victoria Sandman and Mr Giboney. Damages were sought for the difference between what Mark Sandman received under the 2010 will and what he would have received under the 2005 will.

Wilson McKay applied to strike out the claim against it and for summary judgment. These applications failed in the High Court. On appeal, the Court of Appeal granted Wilson McKay’s application for summary judgment.

This Court granted leave to appeal, the approved question being whether the Court of Appeal erred in granting summary judgment.

The majority of the Supreme Court, comprised of Justices Glazebrook, O’Regan, Ellen France and Arnold, said it was arguable that solicitors would be obliged to follow the instructions of their client to draft a will and have it executed, even if they had doubts about testamentary capacity. The majority was, however, content to decide the appeal on the basis that, if Wilson McKay knew that Mrs Sandman lacked testamentary capacity or was wilfully blind, then this would constitute dishonest assistance.

The majority held, on the basis of the contemporary documentation, that Mr Mark Sandman could not succeed at trial in proving that Wilson McKay either knew that Mrs Sandman lacked testamentary capacity or was wilfully blind. The majority noted that, to succeed at trial, Mark Sandman would need to impugn not only Wilson McKay’s contemporary documentation, but also that of the doctor certifying medical capacity and of the independent solicitor certifying the enduring powers of attorney. No reasons were suggested why these professionals would risk their careers by falsifying records.

The majority therefore held that the Court of Appeal was correct to grant summary judgment in favour of Wilson McKay. The majority also held that the firm would have had a strong case for strike-out.

Chief Justice Elias, in dissent, would have set aside the summary judgment entered for Wilson McKay. She considered that the questions of fact concerning testamentary capacity and the firm’s knowledge of it and any undue influence were unsuitable for determination on summary application. Chief Justice Elias would, however, have struck out Mark Sandman’s claim alleging dishonest assistance on the basis that Mark Sandman was not a beneficiary of any trust and no fiduciary duty was owed to him.

Scoop copy of judgment: 2019NZSC41.pdf

© Scoop Media

Business Headlines | Sci-Tech Headlines


Banking: Westpac NZ Lowers Merchant Fees For Small Businesses

Westpac NZ is rolling out a new merchant fee pricing structure that will lead to cost savings for more than 10,000 small and medium Kiwi businesses, and could make contactless transactions more widely available for customers. On 1 September, most ... More>>

REINZ: Million Dollar Plus Property Sales Increase 11.7% Nationally

The number of properties sold around the country for one million dollars or more during the first half (H1) of 2020 increased by 11.7% compared to H1 2019, with 5,426 million-dollar plus properties sold (up from 4,858 in H1 2019) according to the Real ... More>>

Waste: Government To Regulate Plastic Packaging, Tyres, E-Waste

The Government is stepping up action to deal with environmentally harmful products – including plastic packaging, tyres and e-waste – before they become waste. As part of the wider plan to reduce the amount of rubbish ending up in landfills, ... More>>


Bankers Association: Banking Becomes First Living Wage Accredited Industry

Banking has become New Zealand’s first fully living wage accredited industry, leading to nearly 1800 employees and contractors moving onto the living wage and gaining greater economic independence for them and their families. As of today, all ... More>>


Economy: Funding For 85% Of NZ Not-For-Profit Entities Impacted By COVID-19

Results of a recent Institute of Directors poll show that 85% of board members on not-for-profit organisations say COVID-19 has moderately or significantly affected their funding. The ‘pulse check’ conducted in the first two weeks of July looked ... More>>

Volcano Detection: Eruption Alert System Would Have Given 16 Hours’ Warning At Whakaari

An alert system that could have given 16 hours’ warning of last year’s eruption at Whakaari/White Island is ready for deployment, University of Auckland scientists say, with warning systems for Ruapehu and Tongariro the next priority. ... More>>

Property: Queenstown Rents Experience Biggest Drop In Seven Years

Rental prices in the Queenstown-Lakes district saw the biggest annual percentage drop in seven years after falling 28 per cent on June last year, according to the latest Trade Me Rental Price Index. Trade Me Property spokesperson Aaron Clancy said ... More>>

Seismology: The Quiet Earth

As many daily activities came to a halt during lockdown, the Earth itself became quiet, probably quieter than it has been since humans developed the technology to listen in. Seismologists have analysed datasets from more than 300 international ... More>>

RNZ: James Shaw Says Kiwibank, Not Ministers Should Decide On Investors

Climate Change Minister James Shaw says Kiwibank's decision to stop doing business with companies dealing in fossil fuels is the right one. More>>


FMA: Kiwis Confident Financial Markets Will Recover From COVID-19, Plan To Increase Investments

Despite the majority (60%) of investors experiencing losses as a result of COVID-19, the outlook on investing remains positive, according to a Financial Markets Authority (FMA) survey. Most Kiwis (71%) were optimistic that the pandemic will pass eventually ... More>>

FIRST Union: Warehouse Using Covid For Cover As Extensive Restructure Makes Everyone Worse Off

(FIRST Union comments on The Warehouse consultation and proposed restructure) 'Unfortunately the Warehouse have done the disappointing thing and used Covid-19 to justify a bunch of operational business decisions that will leave hundreds of workers without jobs ... More>>


Stats NZ: Mixed Performance By Regions Leaves National Emissions Picture Unchanged

Approximately two-thirds of New Zealand’s regions recorded decreases in their total greenhouse gas emissions, while one-third of regions saw increases between 2007 and 2018, Stats NZ said today. “While some regions reduced their emissions, ... More>>

RNZ: Economic Activity And Business Confidence Bouncing Back

Two surveys from ANZ show business confidence and economic activity have rebounded, but uncertainty about the future remains extreme. More>>